CITATION: Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708

DIVISIONAL COURT FILE NO.: 654/21

DATE: 20231013

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Stewart and Nishikawa JJ.

BETWEEN:

Regional Municipality of York

Applicant

– and –

Ontario (Minister of the Environment, Conservation and Parks)

Respondent

Jonathan C. Lisus, Zain Naqi and David Ionis, for the Applicant

Darrell Kloeze, Susan Keenan and Ryan Cookson, for the Respondent

HEARD by videoconference in Toronto on October 17, 2022 and March 15, 2023, and by submissions in writing

REASONS FOR DECISION

BY THE COURT:

[1] The hearing of this application for judicial review took place on October 17, 2022. Following the making of oral submissions by counsel for the parties, the panel’s decision was reserved.

[2] Approximately one month following the October 2022 hearing, and while the decision of the panel was under reserve, the legislature of Ontario passed legislation that repealed the York Region Wastewater Act, 2021, S.O. 2021, c.32 (the “YRWA”), the statute that had become a central feature of the chronology relevant to this application and the legal submissions made. No mention had been made during the October 2022 hearing by any party that the possibility of such legislative action was in the process of implementation, or was even being contemplated.

[3] The Applicant Regional Municipality of York (“York Region”) asks the panel to exercise its discretion to proceed to consider and decide the application despite this surprisingly abrupt legislative action and to grant its request for declaratory relief. It also seeks to be relieved of any obligation to waive costs in accordance with a prior agreement made by it with Ontario prior to the October 2022 hearing, and now seeks its full costs of the application.

[4] The Respondent Ontario (Minister of the Environment, Conservation and Parks) (“Ontario”) submits that as a result of this development the dispute giving rise to this application for judicial review has been rendered moot. It therefore submits that this panel should decline to decide the issues on the application and order the parties to bear their own costs in accordance with the prior agreement of the parties.

[5] On March 15, 2023 the parties attended before us to make additional submissions on the issues of mootness and costs, as supplemented by additional arguments made in writing.

[6] For the reasons that follow we are of the opinion that the issues in this application are now moot and we decline to exercise our discretion to decide them.

[7] We are of the further opinion that given the background and legislative developments, York Region should now be relieved of any obligation to waive its costs of this application. In the circumstances, we are of the view that Ontario should pay to York Region its costs of these proceedings throughout on a full indemnity basis.

Background

[8] In 2006 York Region began to work on a plan to update its wastewater infrastructure as part of the province’s growth objectives. Based upon the results of a lengthy and expensive environmental assessment York Region recommended a plan that called for the discharge of waste from its municipality into Lake Simcoe.

[9] On July 25, 2014 York Region submitted its plan and the environmental assessment that supported it (the “EA”) to the Minister of the Environment, Conservation and Parks (the “Minister”) for approval. For several years the Minister did not render a decision on this request for approval of York Region’s plan despite the requirement and prescribed timeline of six months for doing so as provided in s. 10 of the Environmental Assessment Act, R.S.O. 1990, c. E.18 (the “EAA”).

[10] Finally, in August of 2021 York Region considered it necessary to commence an application for judicial review of the Minister’s refusal to render a decision. It maintained that such failure to make a decision was in violation of the EAA. As a decision was necessary in order to push forward with its plan, York Region sought an order by way of mandamus requiring a decision to be made by the Minister.

[11] In October 2021, just a few weeks after York Region’s application for judicial review had been initiated, Ontario enacted the YRWA which provided for the establishment of an “advisory panel” to study the wastewater management options available and to make recommendations.

[12] When this application was heard in October 2022, no recommendations had yet been made by the advisory panel. York Region submitted at the hearing of its application that the YRWA’s primary purpose was to thwart its application for relief by attempting to immunize from judicial review the Minister’s bald and unexplained refusal to exercise the power of decision required by the EAA. Among the several arguments advanced by it, York Region maintained that the language contained in the provisions of the YRWA effectively sought to oust the jurisdiction of the courts to review such action (or inaction) and are thereby contrary to s. 96 of the Constitution Act, 1867 and violate long-established common law principles underlying the rule of law in Canada.

[13] Ontario submits that the provisions of the YRWA as enacted by the Ontario legislature sought only to pause the timing of the EA process while the advisory panel established pursuant to it conducted a further assessment of the waste discharge options. No further evidence or submissions were advanced by Ontario to explain or justify the unusual step that it had taken to bypass the hearing and adjudicative process established under the EAA to assess such sensitive and controversial matters of significant public interest, and to avoid its result.

[14] Shortly after the October 2022 hearing before this panel of York Region’s application, the advisory panel established by the YRWA finally released its report. In its report, the advisory panel rejected York Region’s Lake Simcoe waste discharge plan and instead recommended that one of the options for discharge of water into Lake Ontario that had been considered by it was more suited to the management of the wastewater requirements necessary to support the projected growth of York Region.

[15] As noted in paragraph 2 above, on November 28, 2022 the Ontario legislature passed the Supporting Growth and Housing in York and Durham Regions Act, 2022, S.O. 2022, c. 21, Sched. 10 (the “SGA”). The SGA repealed the YRWA and further decreed that:

(a) The EA submitted by York Region is deemed to have been withdrawn and therefore the Minister is not required to make a decision as to whether or not the EA should receive approval;

(b) York Region is required to take all steps necessary to implement the Lake Ontario option identified in the report of the advisory panel, including preparation of environmental impact reports, public consultations and consultations with Indigenous communities. All such steps are to take place outside of the process required by the EAA;

(c) No cause of action may arise against the Crown for anything related to the YRWA or its repeal and all proceedings brought in connection to the SGA, except applications for judicial review, are barred with retrospective effect. Further, any such proceedings brought before the SGA came into force are to be dismissed without costs.

[16] Counsel for the parties then filed additional submissions in writing addressing the implications of these developments for the application for judicial review that had been brought by York Region. They also attended before the panel on March 15, 2023 to make further oral submissions.

Jurisdiction

[17] York Region abandoned its request for an order of mandamus in light of the enactment of the SGA. As a result, Ontario submitted for the first time on the attendance before the panel in March 2023 that this subject matter no longer fits within the ambit of jurisdiction under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1. Ontario submits that, while s. 2(1) of that legislation permits this court to entertain requests for declaratory relief in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power it does not grant this court jurisdiction to issue the declarations of invalidity of the YRWA or the SGA which are being sought.

[18] York Region submits that Ontario should not be permitted to raise this jurisdictional argument at such a late stage in the proceedings as Ontario had ample opportunity to do so once York Region had served its amended notice of application and notice of constitutional question. Further, York Region submits this is an appropriate case for the court to determine the constitutional validity of legislation and maintains its request for a declaration that the Minister’s refusal to fulfil the statutory duty imposed under the EAA was a violation of that duty.

[19] We are of the opinion that this court has jurisdiction to entertain this application and to consider all the remedies sought by York Region, including the issues of legislative validity it raises (see: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 (Div. Ct.)). We view the claim that the Minister’s failure to make a decision on York Region’s request for approval of its wastewater plan, combined with the enactment of legislation removing the requirement to make such decision may amount to a refusal to exercise a statutory power within the meaning of the Judicial Review Procedure Act, and is therefore an issue which may be reviewed by this court.

[20] We further consider, however, that the principal question for us to determine is whether this court should proceed to exercise such power of review in light of these various legislative developments and the fact that the issues raised by York Region on the application before us are now moot.

Mootness

[21] As a result of the SGA the YRWA is repealed, York Region’s EA is deemed to be withdrawn, and the Lake Ontario option has been chosen as the solution to be implemented to deal with York Region’s future wastewater needs. York Region therefore concedes that the SGA has rendered its application moot insofar as it has abandoned its request for an order by way of mandamus to require the Minister to render a decision in that same regard.

[22] The remaining issue is whether this court should nevertheless exercise its discretion to decide the issues raised in this application. In so doing, we are guided by the three main factors established in the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 SCR 342:

(a) the presence of an adversarial context;

(b) the concern for judicial economy; and

(c) the need for the court to be sensitive to its role as the adjudicative branch in our political framework.

[23] Additional considerations include whether the case is one suitable for the court’s review, and whether it is in the public interest to deal with the merits of the original dispute in order to settle the state of the law.

[24] York Region bears the onus of satisfying the court that it should exercise its discretion to hear this matter in accordance with the Borowski test.

[25] In its decision in Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265 the Court of Appeal for Ontario instructed that the test in Borowski is to be applied flexibly. It therefore is not strictly necessary for an applicant to satisfy all three factors of the test. At the same time, it was emphasized that the discretion to hear and decide a moot issue is to be reserved for exceptional cases only.

[26] We are of the opinion that the applicable test, even if applied flexibly to the facts as established, does not operate to persuade us that our discretion to decide a question that is now moot ought to be exercised in this case.

[27] We agree with counsel for Ontario’s submission that the Borowski factors favour our declining to hear this application for declaratory relief, particularly insofar as constitutional invalidity has been asserted by York Region (see: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy, 1995 86 (SCC), [1995] 2 S.C.R. 97). We are also of the opinion that judicial resources should not be allocated to deal with an issue that is no longer in dispute, a challenge to legislation that will have little or no practical effect on the future conduct of the parties with respect to the subject matter.

[28] In a similar vein, we consider the use of judicial resources to hear what is, effectively, a “private reference” is not appropriate (see: Tamil Co-Operative Homes Inc. v. Arulappah, 2000 5726 (Ont. C.A.)).

[29] We acknowledge the importance of the issues raised by York Region in its application, but these are now no longer of practical effect. Despite our concerns about the timing and purpose of the legislation enacted and the way in which it may be said to have circumvented the environmental assessment process and to have removed the statutory decision-making obligation of the Minister in this case, we have been provided with very little by way of evidence or argument to shed light on the factors that prompted this approach or the impact on the competing interests involved. It is conceivable that those with interests most directly affected by the choice of the Lake Ontario wastewater discharge option are not parties to this proceeding. If the issues raised on this application are of a nature that may arise again in the future, we view it as preferable for the court to address them at that time on the specific prevailing law, a more complete record of evidence before it, and with the benefit of a truly adversarial context in the presence of all proper parties affected.

Costs

[30] Ontario submits that the parties had originally agreed before the October 2022 hearing that there should be no award for costs against either party and that such disposition of costs should now be applied.

[31] Ontario also argues that York Region could and should have anticipated that its application could be rendered moot by future government action. In response, York Region describes this argument advanced by Ontario as being a cynical suggestion that it should have known mootness was a possibility because Ontario had previously taken similar legislative action to frustrate its pursuit of relief by passing the YRWA shortly after York Region had indicated its intention to commence an application for judicial review.

[32] Although it may be inferred that York Region was aware that its application could be rendered moot when Ontario communicated its intention in June 2021 to appoint an advisory panel to report on a solution to York Region’s wastewater needs, months before passage of the YRWA and more than a year before passage of the SGA, the sequence of events suggests that Ontario actually was taking background steps to ensure that no decision by the Minister as to the plan submitted by York Region for discharge of wastewater into Lake Simcoe would ever see the light of day. Further, none of this was made known directly to York Region or to the court at the time of the October 2022 hearing.

[33] York Region submits that in the circumstances it is entitled to its full costs if the court chooses not to exercise its discretion to make a decision on the merits, as is now the case. It relies on the authorities cited in Josef v. Ontario Minister of Health, 2013 ONSC 6091 and R. v. Dadzie, 2018 ONSC 1332 for the proposition that costs may be awarded to an applicant whose application has been rendered moot by the conduct of the government, including legislative repeal. Such an award may be justified on the basis of factors that include:

(a) the applicant is a public interest litigant and the application raises issues of general public interest;

(b) the government caused the application to become moot; and

(c) as a result of the government’s actions, the applicant has effectively achieved the result it sought on the application.

[34] York Region has satisfied each of these factors. It notes that, while it would have preferred the Lake Simcoe solution recommended in its plan, the SGA provides the certainty it originally sought when it commenced this application for judicial review (see: Broomer v. Ontario (Attorney General), 2004 27253 (ON SCDC)). The steps taken by Ontario at least constitute a path which allows for all necessary steps to be taken to manage York Region’s wastewater needs, albeit by means of the Lake Ontario solution that had not been preferred by it. In passing the SGA and imposing the Lake Ontario option, Ontario in effect acceded to York Region’s position that certainty as to the approach to be taken by it was necessary to permit it to proceed with management of its wastewater needs in order to address anticipated growth in the municipality.

[35] Given the sequence of events and the information that came to light after York Region had entered into an agreement with Ontario to waive its costs despite the result of its application, we are of the opinion that York Region should no longer be held to its original agreement to waive its costs. As a result of Ontario’s conduct, York Region has been put to considerable unnecessary expense in pursuing a resolution of this issue and, at the same time, it has been forced to put on hold all steps required to proceed with a plan to address its wastewater needs. Ontario’s reprehensible and unexplained delay in the making of a decision for over 6 years beyond the legislated time period for doing so, its ultimate failure to make any such decision pursuant to applicable legislation, and its precipitous and covert action to bypass the usual environmental assessment process for actually determining the issue amounts to especially egregious conduct which we find to be worthy of sanction by means of an award to York Region of its full indemnity costs (see: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766 (Ont. C. A.); Davies v. Clarington (Municipality), 2023 ONCA 367 (Ont. C.A.). Although we are confident that the parties will be able to reach agreement on the amount of payment that results from that order, we remain available to fix an amount if such agreement cannot be achieved.

Conclusion

[36] For these reasons, the application is dismissed.

[37] York Region is entitled to receive from Ontario its costs of these proceedings on a full indemnity basis.

R. Smith J.

Stewart J.

Nishikawa J.

Released: October 13, 2023

CITATION: Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708

DIVISIONAL COURT FILE NO.: 654/21

DATE: 20231013

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Stewart and Nishikawa JJ.

BETWEEN:

Regional Municipality of York

Applicant

– and –

Ontario (Minister of the Environment, Conservation and Parks)

Respondent

REASONS FOR DECISION

Stewart J.

Released: October 13, 2023